Facts
The [A.] (plaintiff, appellant) is an association that safeguards the ideal, economic and professional-policy interests of self-employed persons and undertakings from trades, commerce, services and industry. Its members include, among others, industry and professional associations, including the [X.Y.] employers' association. On a public mandate, the plaintiff is responsible in the canton of [W.] for monitoring undeclared work and, together with the trade union [Z.] , for enforcing various collective employment agreements (CEAs), in particular for collecting wage contributions.
On xxx 2018, the [D.] , a programme of the [B.] (defendant 1, respondent 1), published an online article entitled '[V.] '. On the same day, a radio report with practically the same content was broadcast; the article was linked on the Twitter account of the responsible journalist [C.] (defendant 2, respondent 2). The report addressed the CEA in the [X.Y.] industry, its lack of general binding effect and the enforcement costs. It was suggested that 'compulsory levies' had been collected without basis; reference was made to a possible 'million-franc scandal'. Quoted were [E.] (deputy director of the plaintiff), Prof. [F.] (emeritus professor of labour law, who described the situation on the radio as a 'catastrophe' for social partnership), as well as politician [G.] and Government Councillor [H.] . The Public Prosecutor's Office of [W.] had not yet been informed.
On 17 October 2018, the plaintiff filed an action with the Commercial Court of the Canton of Bern. It sought a declaration that its competitive position had been infringed, various deletions, and publication of the judgment by defendant 1, each subject to the threat of the penalty for disobedience under Art. 292 SCC.
By judgment of 22 April 2020 (HG 18 100), the Commercial Court dismissed the action. It held that the plaintiff had not sufficiently substantiated that it was recognisably affected by the publications for the average addressee and that its own economic competition was impacted. Active standing was therefore not proven.
By civil law appeal of 25 May 2020, the plaintiff requested that the judgment be set aside, or in the alternative that the matter be remitted for a new decision. The respondents requested dismissal of the appeal; the lower court waived its comments.
Considerations
Admissibility and scope of review: The civil law appeal is directed against a final decision of a cantonal court of last instance (Art. 90, 72, 76 FSCA) in a civil matter. The lower court decided as the sole cantonal instance (Art. 5 para. 1 lit. b and d CPC in conjunction with Art. 75 para. 2 lit. a FSCA), which is why the amount-in-dispute threshold of Art. 74 para. 1 FSCA does not apply (Art. 74 para. 2 lit. b FSCA). The time limit (Art. 100 FSCA) has been observed. The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA), but as a rule only considers the complaints raised (Art. 42 paras. 1 and 2 FSCA).
Active standing under Art. 9 and 10 UCA: Under Art. 9 para. 1 UCA, whoever is threatened or injured in their economic interests by unfair competition is entitled to bring an action; a direct interest in safeguarding or improving one's own position in competition is required. Pursuant to Art. 10 para. 2 lit. a UCA, professional and trade associations are also entitled to sue if they are statutorily authorised to safeguard the economic interests of their members, namely for actions for injunction, removal and declaratory relief, but not for reparatory claims. The right of an association to sue is an independent, autonomous right and is not derived from the members' right to sue; the association does not have to prove that its members would be parallel entitled to sue. The economic interests must, however, be collective interests of the members, not their individual interests; it is sufficient if the interests of a small part of the members are affected. A threat (imminent infringement) is also sufficient. Whether a threat exists, where the conduct has already taken place, is assessed by the objective suitability of the conduct to disrupt competition; this is a question of law.
No waiver at the main hearing: The lower court had stated that the plaintiff no longer maintained its scarcely substantiated position on the association action at the main hearing. The plaintiff disputed this, and the respondents also stated that the topic had not been recorded in the minutes. The Federal Supreme Court therefore finds that no waiver existed.
Substantiation of the threat and of being affected: In its reply (para. 11), the plaintiff expressly set out that its member, the [X.Y.] employers'…